March

March 5-12

I’m just back in Houston from speaking at a conference at the Columbia Law School, titled “The Financial Crisis: Can We Prevent a Recurrence?” It was probably the best conference I have ever attended. The organizers, Jeff Gordon of Columbia and Howell Jackson of Harvard Law School, are to be congratulated for putting on a phenomenal event.

“The No. 1 question is: Will the next attorney general focus on Wall Street or a highly dysfunctional New York state government?” said John Coffee, the Adolf A. Berle Professor of Law at Columbia University.

Philip Bobbitt, Matthew Waxman: The past several days have seen a shameful series of attacks on attorneys in the Department of Justice who, in previous legal practice, either represented Guantánamo detainees or advocated for changes to detention policy. As attorneys, former officials, and policy specialists who have worked on detention issues, we consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications.

Columbia Law School Professor Benjamin Liebman notes that the judiciary has become better educated and more professionalized since 1995 (see China’s Courts: Restricted Reform). There has been some movement toward depoliticization, reflecting a “modest attempt by the courts to shift from being a tool for enforcing Party policy to being a neutral forum for dispute resolution.”

Matthew Waxman: Zealous legal representation is critical to that legitimacy. Portraying legal advocacy for detainees as contrary to national security interests is short-sighted and a one-dimensional perspective of a complex set of issues, viewing law as a constraint on American power rather than often a source of it.

A former New York state official pleaded guilty Wednesday to a felony in connection with an alleged pay-to-play scheme involving the state's pension system, a move that could bring the investigation closer to one of Wall Street's most prominent financiers, Steven Rattner. John Coffee, a law professor at Columbia University, said, "Conceivably, there could still be a defense that Quadrangle thought [the "Chooch" deal] was independently desirable. I don't think the jury is going to buy that."

"He is what the commission needs only if the commission needs an emotionally unstable idiot savant," said John Coffee, securities law professor at Columbia Law School. "You cannot be serious. He was right but that does not mean he will be right again."

Ronald Gilson: [M]andate that corporations let stockholders vote annually on whether they want the company to exercise the rights that Citizens United gave them to get into political races. Managers who seek stockholder approval of political activity would explain the actions they intend to take, how those actions would be in stockholders' interests and what the cost will be.

Tim Wu: The industry cannot keep up with wireless demand, and we're already seeing more dropped calls and slow connections as well as those enormous bills for data plans. In a nightmare scenario, jams become the norm instead of the exception, just as they are for our cars. Wireless carriers could use the scarcity to profit, setting aside net neutrality and charging obscene rates for priority calls and guaranteed bandwidth.

Students at Columbia Law School held a panel discussion on Secretary of Education Arne Duncan’s Race to the Top program. The panelists included Professor James Liebman, who argued that for too long, the federal government has been powerless over states’ education policies because it doles out so little of what school districts spend. “The federal government could say to a school that’s failing all of its African American children, go ahead, we’ll keep funding you, or we’re going to take the money away completely,” Liebman said.

Ronald Mann: The problem is that our bankruptcy system is too difficult and expensive for the people who use it. The system has always been complicated, but in 2005 Congress made things worse by changing the rules to make it harder for bankrupt people to avoid paying their outstanding bills. Congress should go back to the drawing board and drastically simplify the bankruptcy system.

When Kaye retired in 2008, Columbia Law School professor Richard Briffault, summing up her legacy in the New York Law Journal, described her as very similar to Sandra Day O'Connor -- "only more liberal."

March 12-19

Columbia law professor John Coffee doubts the fresh evidence in the bankruptcy examiners report will just lie there. “I think, this will probably increase the prospects of both securities litigation against Lehman executives and Ernst & Young.” Coffee says a similar report after Enron's demise bolstered the shareholder's suit against it and ultimately aggrieved investors collected more than $7 billion in settlement money.

Daniel Richman, a former federal prosecutor in Manhattan, and currently a professor at Columbia Law School, said regulators and prosecutors will look further into Lehman’s use of accounting devices. “Fuld, Lehman personnel and the accounting and law firms named in the report might well have very different versions of these facts,” Richman said. “What are portrayed as inappropriate accounting moves will doubtless be described by those in the report as perhaps overly aggressive, definitely regrettable but not criminal.”

Dan Richman, a law professor at Columbia University, said Valukas had produced "a thorough and intensive report" that could prove invaluable to prosecutors and civil enforcement agencies like the Securities and Exchange Commission. "It certainly provides a very major assist to prosecutors trying to understand particularly complex transactions over a long period of time," Richman said.

“Generally, cases like this happen when a celebrity’s license is used to endorse a product,” says Richard Lehv, an adjunct professor at Columbia Law School specializing in trademark infringement. But that’s not the case here. Lindsay Lohan’s not in the ad. It’s a baby. It’s a real stretch.”

“The Tea Party movement is interesting in that there is a combination of localism, nativism and populism that we’ve seen at various points in America,” said Nathaniel Persily, a law professor at Columbia and an editor of “Public Opinion and Constitutional Controversy.” “It’s coalescing at a time when the government is growing to an unprecedented size.”

Nate Persily, a Professor of Law at Columbia University, said the Census Bureau defines “usual residence” as where the person lives or sleeps most of the time. “The usual residence rule is not just a problem with respect to prisons, but all kinds of transient populations, such as university populations,” Persily said. “The census has always had to grapple with this problem — they want to create a rule that’s easily administrable across many different contexts.”

"The Obama administration probably surprised some of its supporters by keeping open a range of tools for handling suspected terrorists," said Matthew Waxman, who served as deputy assistant secretary for detainee affairs from 2004-2005 and now teaches national security law at Columbia Law School. "It stated that its preference is to use the civilian system, but it also defended the use of military commissions for some detainees and continued to argue it can detain some without any trials at all."

Nathaniel Persily, a Columbia University law professor who clerked with Liu and has kept in touch, lauded his friend's temperament - "earnest, honest, serious, diligent, extremely fair-minded" - and his culinary accomplishments, including a delicacy that Persily and his mother dubbed "Salmon a la Goodwin."

Professor John Coffee of Columbia Law School and Nell Minow of the Corporate Library eloquently told Congress that we can make corporate political spending more transparent and more accountable by changing U.S. securities laws.

“If the SEC feels that there is a real shortfall in the company’s liquidity, they’re not serving investors by suppressing that,” said John Coffee, a securities law professor at Columbia University. “The obligation is to disclose all material information.”

Jagdish Bhagwati, an economist at Columbia University, recalls that investors began leaving those markets “in droves, creating a massive crisis.” Those four East Asian countries, according to Bhagwati, experienced a net capital outflow of about $20 billion in 1997 and 1998.

“It is something of a break from the past to have a charter commission begin without at least some direction from the mayor concerning areas of focus,” said Abbe R. Gluck, an associate professor of law at Columbia who was deputy special counsel to the 2005 commission. “In some ways, this is refreshing, because it may indicate that the whole charter is truly up for grabs.”

One regulation already imposing risk is the EPA’s GHG reporting rule, which took effect 1 January and applies to about 13,000 facilities in the US, said Michael Gerrard, director of the Center for Climate Change Law at Columbia University in New York. The EPA will begin publicly disclosing the emissions data in March 2011, which will create lists of the top polluters in the country and individual states.

In the case of Lehman Brothers, John Coffee, an expert in white-collar crime from Columbia University, said he was surprised by the audacity of what the bankruptcy examiner’s report called “accounting trickery”. However, he said criminal indictments would be difficult to achieve because the accounting and legal treatment of the transactions had been blessed by accountants Ernst & Young and the Linklaters law firm.

A more likely outcome is that the SEC files civil lawsuits against Lehman executives based on alleged manipulation of the firm’s financial statements, according to Columbia Law School professor John Coffee. "What more elevates form over substance than repo transactions at the end of the quarter just so you can make your ratios look better?" Coffee said. "This may have only delayed Lehman’s demise, but Lehman was frantically raising capital and investors may have invested based on false statements. They have every reason to believe they were defrauded.

March 19-26

If authorities can’t find a smoking gun (or an executive willing to make a deal) to prove Fuld knew what was going on, it’s possible they could pursue a theory of deliberate ignorance, said Dan Richman, a professor at Columbia Law School. That strategy “involves showing the defendant really tried hard to avoid knowledge -- so hard that he can be held accountable for it,” he said.

[T] he proposal by Columbia Law School professor Michael Graetz, a top Treasury official in the first Bush administration (the better Bush years in the view of most Democrats and independents), to partially replace the federal income tax with a consumption tax may start to look like more of a winner, on the substance certainly, and perhaps even politically.

The Internet is the base terrain of the 21st-century economy. If you’re fast, you’re in front. If you’re slow, you’re behind. Now the U.S. is looking at a plan to catch up. From Steamboat Springs, Colo., we’re joined by Tim Wu, professor of law at Columbia University. His piece “Bandwidth is the New Black Gold,” appears in the March 11 edition of Time magazine.

Daniel C. Richman, a professor at Columbia Law School and former federal prosecutor, said that “given the financial constraints the city is facing, there must have been very bad facts for them to settle for this amount.”

Most of the panelists spoke of diplomacy, but the one divergent voice belonged to associate professor of law at Columbia Law School, Matthew Waxman. He advocated for the use of enacting military force more readily, which he called “a necessary ingredient to combat mass atrocities and genocide.”

"The implications of these results are extraordinarily important," said James Tierney, director of the National State Attorneys General Program. "This report proves that that vigorous state consumer protection laws make a positive difference for consumers throughout the country. The federal government must respect that clear fact."

March 24“One possibility is the prosecutors want to see if he will stick to his story in the grand jury," said Daniel C. Richman, a professor at Columbia Law School and a former federal prosecutor, referring to Canseco’s defense of Clemens in both the affidavit and in statements that Canseco later made to federal investigators in April 2008.

Without speaking to Google's case specifically, Columbia Law School Professor Jane Ginsburg said, "The American trial system depends on pretrial discovery (in which the parties are required to exchange information). As a general practice, losing or destroying documents is not a good thing. It opens you up to serious sanctions."

The European stance differs strongly from the self-regulatory, free market approach favored in the United States, where Web companies have flourished by offering users free services if they provide personal information to help advertising target them better, according to Columbia University law professor Eben Moglen. "If the European regulators get serious, it will create a significant conflict," said Moglen, who has been examining online privacy issues since the early days of the Web.

“Giving people civil immunity often encourages irresponsible behavior,” said John Coffee, a securities law professor at Columbia University who testified before the Senate Judiciary Committee in September in support of the measure. “The Lehman report reminds us that gatekeepers are often the critical actors in financial fraud.”

Most legal experts believe that McCollum and the other AGs have few grounds for their case. Columbia University law professor Nathaniel Persily say there is no way to know how the case will be received, although he is not optimistic about its chances. "A decision striking down this bill would be unprecedented," according to Persily. He added that McCollum could maybe get one or two Supreme Court justices on his side.

Michael Gerrard was a natural selection for our list of Finalists for the upcoming Lawdragon 500 guide, given our goal of recognizing lawyers who work on the cutting edge of the legal profession. Gerrard was a star environmental lawyer at Arnold & Porter and head of its New York office before departing the partnership at the end of 2008 for Columbia Law School, where he is the Andrew Sabin Professor of Professional Practice.

March 26-April 2

Chris Hayes, The Nation's Washington editor, devoted his weekly podcast, "The Breakdown," to the subject, interviewing Columbia University law professor Gillian Metzger, who pointed out that "Congress isn't actually mandating anybody purchase insurance; all Congress is doing is saying if you don't you'll be subject to a tax or penalty -- just like if you don't purchase equipment to manage your pollution emissions you're going to be subject to a tax or penalty."

Abbe Gluck: I agree with the many scholars who have ably rebutted the claim made by the state attorneys general that Congress lacks the power, under Article I of the Constitution, to require individuals to purchase health insurance or face a tax. Congress unquestionably has the power to tax for the general welfare and regulate activity that affects interstate commerce, and it should be beyond dispute that health care (as well as the failure to have it) affects the national economy.

John Coffee, a professor at Columbia Law School in New York, also questions the need for an advocate's office. "I've always thought that the SEC was the investor's advocate," he says. But he's sympathetic to the underlying problems the proposal seeks to address, and says the perceived need for such a change reflects "something seriously wrong at the agency."

Columbia University law professor John Coffee, an expert in securities litigation, said the Bank of America case is a candidate to crack the top 10 list of biggest securities cases — all of which have settled for $1 billion or more and generated millions of dollars in legal fees. “The class fees go to the class counsel. In a typical securities class action, you are likely to get a fee award of 25 percent up to $100 million and a declining percentage thereafter,” Coffee said.

"Some large institutional investors are trying to get companies not to adopt new 10-year plans," said Columbia University Law School professor John Coffee. "By not adopting 10-year plans, but having the ability to adopt pills as needed, you reduce the abrasive conflicts with institutional investors."

Nate Persily: For the 2010 Census, the main point of controversy concerns the counting of the prison population. For the first time, the census will make available in time for redistricting the number of prisoners by census block. This will allow jurisdictions to subtract out prisoners for purposes of redistricting in order to prevent the possibility that some districts become padded with large numbers of ineligible voters.

A recent report by Make the Road NY found high rates of discrimination against transgendered individuals. Pauline Park, chair and co-founder of the New York Association for Gender Rights Advocacy (NYAGRA), and Kendall Thomas, Nash Professor of Law and director of the Center for the Study of Law and Culture at Columbia University School of Law, discuss the state of discrimination against transgender job seekers.

A second legal ethics authority, Professor William H. Simon of Columbia Law School had a similar reaction: "It seems highly misleading," he wrote in an email. "Both the substance and the look-and-feel convey the impression that the VA is offering the services ... The site I looked at -- the Palo Alto one -- is so deceptive that prosecution would be a slam dunk for any regulator that went after this."

Supporters of a change in the agency's policy say it would put meat on the bones of SEC settlements and fit with its overall effort to revitalize its image as an aggressive enforcer of laws against financial crime. "The settlement document has been an artifact," said John Coffee, a securities law professor at Columbia University. "The SEC is premised on the idea that sunlight is the best disinfectant, and a nontransparent settlement harms the SEC's reputation."

"I have no doubt about his integrity, and I'm telling you no one in the regulatory sector has more experience," said John Coffee, a securities professor at Columbia Law School. "Yes, he's been around some collisions that have damaged others' reputations. ... But that is far different than saying I think he's responsible."

"It will trigger other requirements under the Clean Air Act that other companies outside the auto industry don't like," said Columbia Law School professor Michael Gerrard, director of the school's Center for Climate Change Law. "The Chamber of Commerce and other industry associations have been trying to fight this in every possible venue."

NOTE TO FACULTY: This report captures mentions of faculty members from newspapers, magazines, broadcasters, websites, and blogs. However, it does not capture every media hit. If you have an article or op-ed being published, or have an interview or speaking engagement scheduled, please inform the Public Affairs office at publicaffairs@law.columbia.edu. This will allow us to better track coverage, stay informed, and promote your work. You can contact the office at 4-2650 for help facilitating interviews and coverage.